BILL ANALYSIS Ó
AB 263
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CONCURRENCE IN SENATE AMENDMENTS
AB 263 (Roger Hernández)
As Amended September 3, 2013
Majority vote
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|ASSEMBLY: |52-23|(May 29, 2013) |SENATE: |27-11|(September 9, |
| | | | | |2013) |
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Original Committee Reference: JUD.
SUMMARY : Prohibits retaliation against employees.
Specifically, this bill :
1)Provides that it shall be unlawful for an employer or any
other person or entity to engage in, or to direct another
person or entity to engage in, unfair immigration-related
practices against any person for the purpose of, or with the
intent of, retaliating against any person for exercising any
right protected under the Labor Code or by any local ordinance
applicable to employees, including the following:
a) Filing a complaint or informing any person of an
employer's or other party's alleged violation of this code
or local ordinance, so long as the complaint or disclosure
is made in good faith.
b) Seeking information regarding whether an employer or
other party is in compliance with this code or local
ordinance.
c) Informing a person of his or her potential rights and
remedies under this code or local ordinance, and assisting
him or her in asserting those rights.
2)Defines "unfair immigration-related practice" to mean any of
the following practices, when undertaken for a retaliatory
purpose:
a) Requesting more or different documents than are required
under Section 1324a(b) of Title 8 of the United States
Code, or a refusal to honor documents tendered pursuant to
that section that on their face reasonably appear to be
genuine.
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b) Using the federal E-Verify system to check the
employment authorization status of a person at a time or in
a manner not required under Section 1324a(b) of Title 8 of
the United States Code, or not authorized under any
memorandum of understanding governing the use of the
federal E-Verify system.
c) Threatening to file or the filing of a false police
report.
d) Threatening to contact immigration authorities.
3)Specifies that engaging in an unfair immigration-related
practice against a person within 90 days of the person's
exercise of rights protected under this code or local
ordinance applicable to employees shall raise a rebuttable
presumption of having done so in retaliation for the exercise
of those rights.
4)Provides that an employee or other person who is the subject
of an unfair immigration-related practice prohibited by this
bill or a representative of that employee or person, may bring
a civil action for equitable relief and any damages or
penalties, in accordance with this bill.
5)Provides a progressive and discretionary schedule of penalties
upon a finding of violation by a court of applicable
jurisdiction, including potential suspension of a business
license.
6)Defines "license" to mean any agency permit, certificate,
approval, registration, or charter that is required by law and
that is issued by any agency for the purposes of operating a
business in this state, not including a professional license.
7)Permits an employee or other person who is the subject of an
unfair immigration-document practice prohibited by this
section, and who prevails in an action authorized by this
section to recover reasonable attorney's fees and costs,
including any expert witness costs.
8)Requires that the Attorney General shall maintain copies of
court orders that are received pursuant to this section, shall
maintain a database of the violating parties and business
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locations that have violated this section, and make any
applicable court orders available on the Attorney General's
Internet Web site.
9)Provides that an employer may not discharge an employee or in
any manner discriminate, retaliate, or take any adverse action
against an employee because the employee updates or attempts
to update his or her personal information, unless the changes
are directly related to the skill set, qualifications, or
knowledge required for the job.
10)Adds non-employers to the existing prohibition applicable to
employers not to:
a) Make, adopt, or enforce any rule, regulation, or policy
preventing an employee from disclosing information to a
government or law enforcement agency, where the employee
has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a
violation or noncompliance with a state or federal rule or
regulation;
b) Retaliate against an employee for disclosing information
to a government or law enforcement agency, where the
employee has reasonable cause to believe that the
information discloses a violation of state or federal
statute, or a violation or noncompliance with a state or
federal rule or regulation;
c) Retaliate against an employee for refusing to
participate in an activity that would result in a violation
of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation;
not to retaliate against an employee for having exercised
his or her rights in any former employment.
11)Adds a prohibition against retaliation or adverse action to
the existing law forbidding any person to discriminate against
any employee or applicant for employment because the employee
or applicant engaged in any conduct delineated in this
chapter, including the conduct described in subdivision (k) of
Labor Code Section 96, and Chapter 5 (commencing with Section
1101) of Part 3 of Division 2, or because the employee or
applicant for employment has filed a bona fide complaint or
claim or instituted or caused to be instituted any proceeding
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under or relating to his or her rights, which are under the
jurisdiction of the Labor Commissioner, or because the
employee has initiated any action or notice pursuant to Labor
Code Section 2699, or has testified or is about to testify in
a proceeding pursuant to that section, or because of the
exercise by the employee or applicant for employment on behalf
of himself, herself, or others of any rights afforded him or
her, and provides that a person aggrieved by a violation of
this provision shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by those
acts of the employer, and in addition to other remedies
available, an employer who violates this section is liable for
a civil penalty not exceeding $10,000 per employee for each
violation of this section.
The Senate amendments make the license penalties discretionary
rather than mandatory in light of specified factors including
the licensee's good faith, reduce the severity of the penalties,
limit the definition of affected licenses, and add
chaptering-out provisions.
FISCAL EFFECT : According to the Senate Appropriations
Committee:
1)The Department of Industrial Relations (DIR) estimates that it
would incur costs of $415,000 (special funds) and require up
to five positions to implement the provisions of the bill.
2)The Department of Justice indicates its impacts from the bill
would be insignificant.
3)Costs to the state court system are unknown.
COMMENTS : According to the author: "Immigrant workers represent
perhaps the most vulnerable segment of the workforce population
in both the United States and California. First, many immigrant
workers are highly-concentrated in low-wage, underground economy
industries - garment manufacturing, agriculture, construction,
restaurants, domestic work, janitorial or building maintenance
work, and car washes, among others. As such, immigrant workers
work often work under harsh working conditions, earn very low
wages with little or no benefits, risk serious and fatal
injuries on the job, and are susceptible to employer harassment
and other forms of abuse. Second, immigrant workers are
especially vulnerable to retaliation and often face the
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additional risk that unscrupulous employers will threaten to
report them to immigration authorities. Other employers engage
in other forms of retaliation and coercion that chill employees
from exercising their rights under the law."
The Labor Code currently prohibits discrimination against
employees and applicants for employment because he or she
engaged in specified conduct, including the conduct described in
subdivision (k) of Labor Code Section 96, and Chapter 5
(commencing with Section 1101) of Part 3 of Division 2, or
because the employee or applicant for employment has filed a
bona fide complaint or claim or instituted or caused to be
instituted any proceeding under or relating to his or her
rights, which are under the jurisdiction of the Labor
Commissioner, or because the employee has initiated any action
or notice pursuant to Labor Code Section 2699, or has testified
or is about to testify in a proceeding pursuant to that section,
or because of the exercise by the employee or applicant for
employment on behalf of himself, herself, or others of any
rights afforded him or her. Current law provides that an
employee who is discharged, threatened with discharge, demoted,
suspended, or in any other manner discriminated against in the
terms and conditions of his or her employment in violation of
the law shall be entitled to reinstatement and reimbursement for
lost wages and work benefits caused by those acts of the
employer.
This bill adds retaliation and adverse employment action to this
prohibition, and provides that in addition to other remedies
available, an employer who violates this section is liable for a
civil penalty not exceeding $10,000 per employee for each
violation of this section. The bill further provides that in
the enforcement of this section, there is no requirement that an
individual exhaust administrative remedies or procedures.
Under existing law it is improper for an employer to make,
adopt, or enforce any rule, regulation, or policy preventing an
employee from disclosing information to a government or law
enforcement agency, where the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation or noncompliance with a state or
federal rule or regulation. Similarly, employers may not
retaliate against an employee for disclosing information to a
government or law enforcement agency, where the employee has
reasonable cause to believe that the information discloses a
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violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation. In
addition, an employer may not retaliate against an employee for
refusing to participate in an activity that would result in a
violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.
Likewise, an employer may not retaliate against an employee for
having exercised his or her rights in any former employment.
This bill would extend these prohibitions from employers to all
persons and entities.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
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